Tyagi v BBC World Service

For limitation purposes, a discriminatory recruitment decision is ordinarily a one-off act relating to the particular employment offered. The continuing consequences of that decision do not make the decision itself an act extending over a period.

A continuing discriminatory policy may support a complaint by an existing employee where it denies access to promotion, benefits or services. A prospective applicant who is not employed, has not been refused a particular job within time, and is not subject to a specific requirement or condition cannot rely on a general discriminatory policy merely because it might affect a future application. The statutory provisions concerning discriminatory practices provide the appropriate mechanism for policing such general practices.

Mr Tyagi applied unsuccessfully for producer posts with the BBC World Service. His later complaint alleged that the selection process and the BBC’s recruitment policy were racially discriminatory.

The employment tribunal held that it had no jurisdiction because the complaint was out of time. The Employment Appeal Tribunal dismissed his appeal. Permission to appeal to the Court of Appeal was granted only on whether the alleged continuing policy meant that the complaint was in time under section 68(7)(b) of the Race Relations Act 1976.

1. Appeal dismissed. The Court of Appeal unanimously upheld the decision that the complaint was out of time.
2. Lord Justice Brooke held that section 68(7)(b) applies where there is an act extending over a period. A refusal to offer a particular job, or discriminatory arrangements for determining who should be offered that job, is ordinarily a one-off act. Its continuing consequences do not convert it into a continuing act.
3. The court distinguished the continuing-policy cases involving employees. A discriminatory rule denying an employee access to promotion or other employment benefits may continue throughout the employment and be treated as done at the end of that period. That reasoning did not assist a person who was not employed by the respondent and had no particular job application or refusal within the limitation period.
4. The court considered Amies v Inner London Education Authority, Calder v James Finlay Corporation Ltd, Barclays Bank Plc v Kapur and Cast v Croydon College. Their continuing-act reasoning concerned employees affected by discriminatory promotion policies or employment regimes. Approval of the relevant passages in Barclays Bank Plc v Kapur did not resolve the distinct issue before the court.
5. Section 28 of the Race Relations Act 1976 addressed the broader concern. A discriminatory practice, including arrangements likely to result in discrimination where there had been no occasion to apply the practice, could be policed by the Commission for Racial Equality. Section 1 did not provide a private complaint based solely on a general policy not applied to the applicant.

• Court of Appeal (Civil Division): Appeal dismissed.
• Employment Appeal Tribunal: Appeal dismissed and permission to appeal refused following the substantive hearing on 3 April 2000.
• Employment tribunal: On 13 April 1999, held that it had no jurisdiction to hear the complaint and refused an extension of time.